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论述公司债与公司股份的区别。

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正确答案:

(1)投资主体的法律地位不同

公司债券的投资人与公司之间是一种债权债务关系,因而投资人是公司的债权人,其与公司之间关系的处理准则适用于法律关于债权债务关系处理的一般原则;公司股份的持有者是公司的股东,是公司财产的终极所有者,与公司之间是一种因财产所有权转化而形成的股权关系。并且,股东和公司分别是独立的“人”,股东与公司之间的投资关系不是债权债务关系,因而也不适用法律关于债权债务关系处理的一般准则,而是适用公司法关于股东与公司关系的处理原则来解决双方的权利义务关系的。

(2)投资主体的权利内容不同

公司债券持有人因其享有的是债权,故不享有公司事务的经营决策权,也不得干预公司内部事务的决定及执行。其对公司的权利就是按期收回本息,而公司对公司债券持有人则负有无论经营好坏必须按时偿还本息的义务,否则,公司将承担违约责任;股东依法享有资产受益、重大决策及选择管理者等一系列股东权。其中的资产受益权实现的程度取决于公司经营业绩的好坏,并随之而变动。而且,股权是没有到期日和偿还期的,股东通常无权要求公司“还本付息”。在公司清算时,股东必须在债权人之后行使其对公司剩余资产的分配权。

(3)获得权利的对价形式不同

公司债券的认购仅限于金钱给付;股权的获得,其对价可以是现金,也可以是法律允许的实物、知识产权、土地使用权等财产权利。

(4)发行时间上的差异

公司债券只能在公司成立后、而不能在公司成立前发行;股票既可在公司设立过程中(即公司成立前)发行,也可在公司成立之后发行。

答案解析:

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